On certification to the Superior Court, Appellate Division, whose opinion is reported at 143 N.J. Super. 411 (1976).
For affirmance -- Chief Justice Hughes, Justices Sullivan, Pashman, Clifford, Schreiber and Handler, and Judge Conford. For reversal -- None. The opinion of the Court was delivered by Pashman, J.
[77 NJ Page 579] Defendant Fred Mingo appeals from his convictions for rape and attempted robbery. Before she was attacked, the victim of the crimes with which Mingo was charged had been lost in an unfamiliar section of Paterson. In response to her request for assistance, the eventual assailant provided the victim with handwritten directions to her destination on a small piece of note paper. While in police custody, Mingo, at the instruction of the police, furnished handwriting exemplars in the exact words which had been written by the rapist. Several of the exemplars were rendered on small pieces of paper from a note pad. Prior to trial, Mingo's attorney sought to compel the State's production of the note allegedly written by the assailant for the purpose of having it examined and analyzed by a handwriting expert retained by the defense attorney to aid in the preparation of a defense. Over objection, the judge conditioned his grant of this request on defense counsel's agreeing to furnish the prosecutor with a copy of any reports concerning the handwriting on the note rendered by the expert irrespective of whether the defense intended to use the expert as a witness at trial. Defense counsel provided the
expert with three letters written by the defendant as samples of his handwriting for purposes of comparison with the handwriting on the document furnished by the State. The expert concluded that the same person had written each and gave a report to that effect to defense counsel. The defense attorney accordingly determined that he would not use the expert as a witness at trial, since the expert's conclusion effectively precluded any attack based on the identity of that document's author. Pursuant to the discovery order, the prosecution obtained a copy of the expert's report and, in view of its contents, subsequently subpoenaed the expert to testify on behalf of the State at defendant's forth-coming trial.
Over defense counsel's strenuous objection that testimony by the expert would violate the attorney-client privilege, he was allowed to testify in the State's case-in-chief.*fn1 He described the methods and results of his analysis of the handwriting samples furnished by the defendant and the handwriting on the note identified by the victim as having been written by her assailant.*fn2 Questioning by the defense attorney brought out the fact that the expert had originally been retained to conduct the handwriting analysis by the defense and that he had received the samples of the defendant's handwriting from the defense attorney. However, the defense did not attempt to challenge the accuracy of the expert's ultimate conclusion. It even went so far as to have
the expert make an in-court analysis of another handwriting sample, provided then and there by the defendant writing the same words which appeared on the note, which reached the same conclusion as to common authorship.
This seemingly counterproductive course of action served as a prelude to the later testimony of the defendant himself. On cross-examination, Mingo identified the note furnished by the prosecution and analyzed for purposes of comparison by the handwriting expert as one of the exemplars he had been compelled to provide the police at the time of his arrest. If that testimony were true, the note could not have been the one written by the perpetrator. This theory was also consistent with the conclusion drawn by the handwriting expert, since he would then have only been matching several samples of handwriting, all of which were the defendant's. The subject of the expert's opinion had only been the identity of the author of the note offered by the prosecution, not the time when it was written. The jury apparently did not find Mingo's testimony persuasive, as it found him guilty.
Defendant's conviction was affirmed by the Appellate Division, which in an unanimous opinion rejected each of his several grounds of appeal. 143 N.J. Super. 411 (App. Div. 1976). We granted his petition for certification, N.J. (1976).
At the outset, we note that the State had no justification for calling defendant's handwriting expert as its witness. If it considered the identity of the disputed note's author to be a critical part of its case, the State was fully capable of retaining its own expert. The better practice would have been for it to have done so, and thus avoid jeopardizing any conviction it might obtain.
The right to counsel afforded criminal defendants by the Sixth Amendment of the United States Constitution and by Art. I, par. 10 of the New Jersey Constitution comprehends the right ...